The Noerr-Pennington Doctrine

The Noerr-Pennington doctrine immunizes from antitrust liability those individuals who urge the federal or state government to take actions that may impose restraints on trade.

The doctrine is court-made and takes its name from two Supreme Court cases, Noerr,, cited as Eastern R. Conf. v. Noerr Motors, 365 U.S. 127 (1961) (No violation of the Sherman Act can be predicated upon mere attempts to influence the passage or enforcement of laws, and the Sherman Act, therefore, does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or monopoly), and Pennington, cited as United Mine Workers v. Pennington, 381 U.S. 657 (1965).

Additional cases involving the Noerr-Pennington Doctrine can be found on the C.H.Guernsey antitrust resources page.

FTC Noerr Task Force In his comprehensive, fully-footnoted speech, entitled "Looking Forward: The Federal Trade Commission and the Future Development of U.S. Competition Policy" (Dec., 2002), FTC Chairman Timothy J. Muris included a section that describes in detail the Task Force he created to study Noerr and to recommend appropriate case and advocacy opportunities, while outlining the history of the Noerr Doctrine, and examining recent Commission activity related to Noerr. He also explains his concerns with an overbroad Noerr Immunity:

The Noerr doctrine . . . provides antitrust immunity for individuals "petitioning" government, whether through lobbying, administrative processes, or litigation. Noerr is often invoked to shield a particularly effective way of monopolizing a market - through misuse of governmental process. As originally conceived, Noerr sensibly reserved a narrowly defined sphere of political activity from enforcement of the antitrust laws. However, Noerr immunity has been expanded in a manner that potentially harms consumers. In some instances, parties have been granted immunity even though the anticompetitive conduct at issue had no "petitioning" component whatsoever. In others, courts have immunized abusive tactics, such as repetitive lawsuits and misrepresentations, that were clearly intended to delay a competitor's entry or raise its costs, rather than legitimately to petition government.